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SPEECH 



HON. REVERDY JOHNSON, 

OF MARYLAND, 



v> 



ORGANIZATION OF PROVISIONAL GOVERNMENTS WITHIN THE STATES WHOSE PEOPLE WERE 
LATELY IN REBELLION AGAINST THE UNITED STATES; 



IN THE SENATE OF THE UNITED STATES, JANUARY 11, 1866. 



WASHINGTON: 
^6y , PRINTED AT THE CONGRESSIONAL GLOBE OFFICE. 

1866. 



EU2 



SPEECH. 



The Senate having under consideration the joint 
resolution (S. R. No. 11) in relation to the organiza- 
tion of provisional governments within the States 
whoso people were lately in rebellion against the 
United States — 

Mr. JOHNSON said : 

Mr. President : In the remarks which I 
propose to submit to the Senate, it is my 
purpose to consider almost exclusively the 
question as to the actual condition of the 
States in which insurrections have heretofore 
existed; and I take occasion to do it now be- 
cause I differ materially from the honorable 
member from Wisconsin, [Mr. Howe,] who 
spoke so well yesterday in maintaining an 
opinion opposite to my own, from a desire 
that that opinion, supported as it was in a very 
carefully prepared and very able speech, should 
not be permitted to go to the country a day 
without an effort at a reply. I feel no reluc- 
tance in speaking upon the particular question 
now because I happen to be a member of the 
committee of fifteen, because the opinion which 
I am about to state and to uphold is one which 
J have entertained from the beginning; not 
only from the beginning of our recent troubles, 
but from the earliest period at which I can 
recollect I had any opinion at all upon the 
meaning of the Constitution in the particular 
involved. 

I understand the honorable member from 
Wisconsin to maintain that the effect of the hos- 
tilities which we have been carrying on to sup- 
press the insurrection in certain of the States 
where it has prevailed for some four years is to 
extinguish altogether the States as such, and to 
reduce the territory of which those States were 
composed at the time when the insurrection 
broke out to the condition of Territories, and to 
subject the people of those States to be governed 
under that clause of the Constitution which gives 
to Congress the power to govern the Territories, 



or upon the ground that they have been con- 
quered by the United States, and that the power 
to govern is to be implied from the.right of con- 
quest when the conquest is completed. 
_ Mr. HOWE. If the honorable Senator is 
simply stating what he understands to be the 
effect of my argument, I cannot object to it ; but 
if he understood me to say that the purpose for 
which we prosecuted this war was to extinguish 
those States, he misunderstood me. 

Mr. JOHNSON. I have not so stated. 1 
did not understand the honorable member as 
saying that the purpose for which the war was 
prosecuted, but that the result of the prosecu- 
tion of the war, was to reduce those States to 
the condition of Territories. It is to that prop- 
osition 

Mr. HOWE. If the honorable Senator will 
pardon me for one moment, my position was 
not that the result of the prosecution of the 
war was to reduce those States to Territories, 
but that they assumed the legal character of 
Territories by reason of their own acts, inde- 
pendent of the war. They destroyed the State 
organizations, not we. 

Mr. JOHNSON. I so understood you. 

Mr. HOWE. And the effect of the war was 
simply to reduce them to obedience to the Uni- 
ted States, to be governed by such instrumen- 
talities as the Constitution has provided. 

Mr. JOHNSON. I am sure I have not mis- 
apprehended the Senator. It would have been 
very difficult for anybody to misapprehend him, 
for he was exceedingly lucid in everything he 
said. It may be possible that I may fail to ex- 
plain what I understand to have been his prop- 
ositions, and if I should do so in any part of the 
remarks which I am about to make, I hope the 
honorable Senator will set me right. 

Mr. President, I propose first to inquire, what 
is the effect of the war itself? Is its successful 
result to reduce the States to the condition of 
Territories? I shall then inquire, if that is not 



its effect, whether that has been produced by any 
conduct upon the part of the citizens residing 
within the limits of those States? No member 
of the Senate, I am sure, is now to learn that 
there is no power in the Constitution of the Uni- 
ted States given to Congress, or any other de- 
partment of the Government, to declare, or to 
carry on, a war against any State. The power 
to declare war, devolved upon Congress by the 
eighth section of the first article, is a power 
evidently looking to a war between the United 
States and a foreign nation. The authority, too, 
to protect the United States, or a State, by arms 
against invasion is a power given to Congress 
for protection against foreign invasion. If there 
could be any doubt, looking to the character of 
the Government, that such is the limitation of 
the war power, that doubt would be removed by 
the fact that there is in another part of the same 
section a provision which looks to the carrying 
on of such a contest as the one in which we have 
just been engaged. The language of that clause 
of the section succeeding the one which gives 
to Congress the authority to declare war, to 
raise and support armies, and to maintain and 
equip a' navy, is : 

"To provide for calling forth the militia to exe- 
cute the laws of the United States, suppress insur- 
rection," &c. 

It was not, therefore, by means of the war 
power conferred upon Congress by the antece- 
dent clause, giving to Congress the. authority to 
declare war and vesting it with the means ade- 
quate to the end designed, that domestic out- 
breaks among ourselves were to be suppressed. 
The Convention looked to two contingencies as 
likely to happen : first, that we might be involved 
in war with foreign nations ; secondly, that Ave 
might be involved in domestic troubles. For 
the one, they conferred upon Congress the war 
power, strictly speaking ; and for the other, the 
authority to suppress insurrections, not by means 
of the war power, but by means of force. It was 
a police power given to Congress as such ; not a 
power under which, by any possible mode in 
which it could be exercised, any conquest, in the 
proper sense of that term, was to be achieved ; 
not a power by which there was to be extin- 
guished any existing institution in anyone of the 
States ; and, above all, not a power to destroy a 
State or States. 

You will remember, Mr. President, and every 
member of the Senate who is familiar with the 
proceedings of the Convention will, I have 
no doubt, remember, that when it was sug- 
gested that Congress should have the authority 
to make war against a State, the proposition 
was repudiated as fatal to the Government by 
two leaders of that body of mighty men, Ham- 
ilton and Madison. I have not time to state 
their reasons, nor to refer to the debates where 
the)' are to be found. It is sufficient for my pur- 
pose to say that they both denied that, as far as 



the Convention had proceeded at that time, any 
such authority was given to Congress, and pro- 
tested against the propriety of conferring any 
such power, and it was never conferred. 

The power actually given was a power to 
preserve, not to destroy; a power to main- 
tain, not to extinguish ; a power to make the 
Government what the preamble to the Consti- 
tution states to be the purpose of its framers, 
perpetual ; a Government for the security of lib- 
erty for themselves and their posterity forever. 
It would have been an extraordinary anomaly, 
one that would justly have deprived its authors 
of the reputation that they now hold in the eyes of 
the civilized world, if, in forming a Government 
they designed to be perpetual, they had given 
it a power to destroy itself. The purpose, then, 
of the war power, strictly speaking, and of the 
police power conferred upon Congress by that 
clause in the eighth section of the first article, 
was to preserve, and not to destroy ; to preserve 
it if assailed by a foreign foe ; to preserve it if 
assailed by domestic treason or violence. 

The proposition is so clear that I should not 
have deemed it necessary to cite authorities for 
the purpose of proving it, but that perhaps the 
observations of the honorable member from 
Wisconsin may induce some of the Senate, or 
induce the public, to suppose that there is in 
the Constitution an authority to carry on a war 
against a State. The question has been before 
the Supreme Court of the United States in the 
cases the opinion in which has been very much 
relied upon as maintaining in part the doctrine 
for which the honorable member contends ; I 
mean the prize cases. Mr. Justice Grier, in 
delivering the opinion of the court in these 
cases, uses this language : 

"By the Constitution Congress alone has the power 
to declare a national or foreign war. It cannot de- 
clare war against a State, or any number of States, 
by virtue of any clause in the Constitution. The Con- 
stitution confers on the President the whole executive 
power. lie is bound to take care that the laws be 
faithfully executed. He is Commander-in-Chief of 
the Army and Navy of the United States, and of tho 
militia of the several States when called into the act- 
ual service of the United States. He has no power to 
initiate or declare war either against a foreign nation 
or a domestic State. But by the acts of Congress of Feb- 
ruary 28, 1795, and of March 3, 1807, he is authorized 
to call out the militia and use the military and naval 
forces of the United States in case of invasion by for- 
eign nations, and to suppress insurrection against the 
government of a State or of the United States." 

Here, then, is an express denial of the power, 
either upon the part of Congress, or upon the 
part of the Executive, to carry on.a war against 
a State, under any clause of the Constitution. 
The language is plain and positive. "It can- 
not," says the court — that is Congress can- 
not — " declare war against a State or any num- 
ber of States, by virtue of any clause in the 



5 



Constitution." And the same doctrine is held 
by the minority in the opinion delivered by Mr. 
Justice Nelson. He says : 

"The acts of 1795 and 1S07 did not, and oould not, 
under the Constitution, confer on the President the 
power of declaringwar against a State of this Union." 

We have, then, the unanimous opinion of the 
Supreme Court that domestic troubles, insur- 
rection, a refusal to obey the Constitution or 
laws of the United States, or to execute the 
laws, or to interpose obstacles against the exe- 
cution of the laws, do not authorize Congress 
to declare war against the State in which such 
insurrection may exist, is not a condition of 
things in which the President has any power to 
carry on a war by virtue of the war power for 
the purpose of reinstating the authority of the 
Government, but, on the contrary, is a state of 
things to be remedied by means of the police 
power, which Congress may authorize the use 
of by empowering the President to call out 
the militia, or use the Army and Navy of 
the United States to suppress an existing in- 
surrection when it can be suppressed in no 
other way. 

It would seem, therefore, to follow that when 
the insurrection is suppressed, when the contin- 
gency which requires a resort to the police power 
is at an end, the continuing use of that power, 
only conferred to suppress an insurrection, to 
carry on a war against a State in which there is 
no insurrection, is a simple absurdity. The 
design of the authority was to provide exclu- 
sively for the exigency, to meet which was the 
declared object of vesting the power in Con- 
gress to suppress insurrection. If the authority 
of the Government is set at defiance, if the laws 
cannot be executed by civil process, it is made 
the duty of Congress to provide other means by 
which it can be accomplished. It is their prov- 
ince, therefore, to put the President in posses- 
sion of such means. But there is no more right 
to exert by force the police power after the in- 
surrection is suppressed than there is to exert 
it before the insurrection commenced. 

Mr. President, if I am right in this — and I do 
not think I can be mistaken — and there are no 
other grounds on which the proposition of the 
honorable gentleman from Wisconsin might be 
controverted, it is found to be repudiated by 
the positive provisions of the Constitution and 
by the decision of the Supreme Court. 

But it is said that although there was no au- 
thority to carry on hostilities for the purpose of 
exterminating the States in which insurrection 

Erevailed, that although that result would not 
ave been attained by the use of force alone, yet 
that the conduct of the citizens of those States 
has attained it, and that the States as such are at 
an end. At an end how? At an end why? At 
an end because they decided to secede and 
attempted it? At an end because we have 
acquired rights over them by conquest which 



we had not when the rebellion begun? Now a 
word as to the first ground. 

The States ceased to exist by virtue of the 
conduct of their own citizens, is the argument. 
What conduct, and when had it that effect? 
They passed ordinances of secession. AVere 
these valid? Had they any legal operation what- 
ever? Did they take the States whose people 
had passed such ordinances out of the Union? 
Did they dissolve the connection to any extent 
which existed as between those States and the 
Union by force of the Constitution? If they 
did, it can only be because the ordinances were 
valid. The States are out, says the honorable 
Senator from Wisconsin, because their people 
determined that they should go out ; they are 
out, because they were so far disloyal as to de- 
clare by ordinance that they were out; they are 
out because they are still disloyal, although the 
insurrection has been in fact suppressed and the 
authority of the Government reinstated. Well, 
if they are, why is that the result ? If the ordi- 
nances were void, they could not take them out. 
If the citizens had not a right to be disloyal, 
their_ disloyalty could not put them out. If, 
notwithstanding the ordinances, on the clay after 
they were passed the States were as much in the 
Union as on the day before they were passed, 
and if, after the ordinances were adopted and 
hostilities were being carried on, their citizens 
had no more right to be disloyal than they had 
before hostilities commenced, then they are just 
as much in the Union now as they were before. 

Will any member of the Senate seriously main- 
tain, or maintain at all, that the ordinance of 
secession had any validity whatever? If any 
member does so hold, the war upon our part has 
been a great crime ; we have been traitors to the 
obligationsweareunderto the Constitution, and 
not those who, exercising the right of secession, 
have separated themselves from us. But if, as 
we all hold, and now everybody thinks, the Con- 
stitution confers no right of separation, but im- 
poses an obligation upon every citizen in every 
State, no matter what may be his conduct or the 
conduct of all his fellow-citizens, as absolute as 
it does upon every citizen in any other State, then 
the ordinances of secession were simply void, 
absolutely void, having no more effect to termi- 
nate the connection between those States and 
the people of those States and the Government 
of the Union, than if such ordinances had been 
passed by any people outside of the limits of the 
United States ; and my friend from Wisconsin 
must admit this view to be correct. 

If the ordinances of secession then had no op- 
eration, but were legal nullities, how is it that 
separation is effected by the conduct of the indi- 
vidual citizens ? Is not every man who has been 
engaged in the insurrection, and who lias at- 
tempted to maintain it by force of arms, a traitor, 
if we look merely to the language of the Consti- 
tution in its definition of treason? Can anybody 
doubt that ? Whether he may be prosecuted for 



treason now, under the circumstances which 
have occurred since hostilities commenced, is 
a grave question which I do not propose to dis- 
cuss or to express an opinion upon at this time. 
But, regarding only the single fact that he has 
been a party to the insurrection and has endeav- 
ored to aid and support it by forceof arms, I 
apprehend there is not a member of the Senate 
who will for a moment question the right of the 
Government to prosecute him for treason, and 
that that right is not dependent upon the time 
at which he may have attempted by force of 
arms to resist the authority of the Government. 
If done an hour before hostilities terminated by 
the surrender of the insurgents, he is just as 
much a traitor, in the eye of the Constitution, 
looking alone to the fact that he was so engaged, 
as he was a traitor who, in the origin of the re- 
bellion, supported it by force of arms. And if 
this be so, why is it so? Only because he was 
then, and is still, a citizen of the United States, 
bound by the Constitution of the United States, 
under the obligation of the laws of the United 
States, and because what he has done has been 
an act violative of the obligations of both, and 
an act subjecting himself to the consequences 
of that violation, just as absolutely as my hon- 
orable friend (if he will permit me to suppose 
such a thing possible) would be if he, in his 
State of Wisconsin, was found in arms resisting 
the rightful authority of the United States. 

Unless I am greatly mistaken this result can- 
not depend on whether a few or many are in 
the insurrection. It is insurrection still in the 
view of the Constitution, and being insurrection 
attempted to be maintained by force of arms, it 
is treason, and treason only because, like our- 
selves who have been here during the whole of 
the contest, faithful to our allegiance, these err- 
ing, misguided men were citizens of the Uni- 
ted States, and responsible to all the obligations 
imposed upon citizens of the United States by 
the Constitution and laws passed under its au- 
thority. 

What would be the consequence of the oppo- 
site doctrine — I do not mean to say that the 
honorable member from Wisconsin goes to that 
extent — but what would be the logical result 
of the opposite doctrine? The States, accord- 
ing to that doctrine, are out ; as such they have 
ceased to exist ; they are not to be recognized 
by the Constitution at all ; they are as absolutely 
without the Constitution as States as any of the 
'unorganized territories of the United States. 
If this be so, if this is the effect of what has 
happened, how are you to get them in? The 
honorable member goes to the length which I am 
about to state, if I correctly apprehended him, 
as I certainly endeavored to do. You are, he 
contends, to get them in again only by subject- 
ing them first to a territorial government. What 
does that admit? That they are under no ob- 
ligation as citizens of a State to obey the Con- 
stitution and laws of the United States, that 



they are under no obligation to take any part 
in the election of the Executive, in the election 
of. Senators, in the election of members of the 
House of Representatives. What follows from 
this? Does this enforce the Constitution and 
laws ? Is this the only manner in which the au : 
thority of the Government is to be reinstated? 
The offense of these citizens was a refusal to 
participate in the councils of the nation. The 
proposition is that that very refusal has put 
them in a condition in which they have no right 
to participate in such councils, and cannot par- 
ticipate unless we hereafter, at any time when in 
our judgment we may think proper, give them 
that right. 

Let us see what is to become in the mean time 
of our laws in other respects. How is your 
revenue to be collected by any laws now in force ? 
If you impose a direct tax, how is that to be 
apportioned by any law now in force ? The lan- 
guage of the Constitution is that direct taxes 
are to be apportioned among the States in a 
certain proportion. Have you not done it pend- 
ing the insurrection? You passed an act in 
1801, from which I am about to read. It was 
passed on the 5th of August, the rebellion hav- 
ing commenced in April preceding. I rather 
think my friend to whom I am replying voted 
for this law. Certainly I can find nothing in 
the proceedings of the Senate to show that he 
or any other Senator opposed it ; he will cor- 
rect me if I am wrong. When this law -svas 
passed, the result of the conflict, in the appre- 
hension of some, was exceedingly doubtful; 
those of us who were most confident were some- 
what apprehensive. All the conduct of the 
States or citizens upon which the honorable 
member now relies for the purpose of showing 
that these States ceased to exist and are now 
Territories, they and their citizens, to be gov- 
erned accordingly, had then occurred. What 
is the law passed, 1 believe, by a unanimous 
vote of this body, and, as far as I know, with 
like unanimity in the House ? It is entitled ' ' An 
act to provide increased revenue from imports, 
to pay interest on the public debt, and for other 
purposes." Its every section bears upon the 
question I am discussing, but I have not time 
to read the whole. I refer particularly to the 
eighth section, which provides: 

" That a direct tax of $20,000,000 be, and is hereby, 
annually laid upon the United States, and the same 
shall be, and is hereby, apportioned to the States, 
respectively, in manner following." 

And then it proceeds to state the amount 
apportioned to each State, and among these 
items are these : 

"To the Stateof Virginia, ninehundred and thirty- 
seven thousand five hundred and fifty and two third 
dollars. 

" To the State of North Carolina, five hundred and 
seventy-six thousand one hundred and ninety-four 
and two third dollars. 



" To the State of South Carolina, three hundred and 
sixty-three thousand five hundred and seventy and 
two third dollars. 

"To the State of Georgia, five hundred and eighty- 
four thousand three hundred and sixty seven and one 
third dollars. 

" To the State of Alabama, five hundred and twenty- 
nine thousand three hundred and thirteen and one 
third dollars, 

"To the State of Mississippi, four hundred and thir- 
teen thousand eighty-four and two third dollars. 

"To the State of Louisiana, three hundred and 
eighty-five thousand eight hundred and eighty-six 
and two third dollars. 

"To the State of Tennessee, six hundred and sixty- 
nine thousand four hundred and ninety eight dollars. 

"To the State of Arkansas, two hundred and sixty- 
one thousand eight hundred and eighty-six dollars. 

"To the State of Florida, seventy-seven thousand 
five hundred and twenty-two and two third dollars. 

"To the State of Texas, three hundred and fifty-five 
thousand one hundred and six and two third dollars." 

Making an aggregate of between five and six 
million dollars as the proportions of these States 
of the 820,000,000 which you proposed to raise 
by this law. Look to the Constitution of the 
United, States and you- find that you had no 
authority to make that apportionment except 
upon the theory that these States were then 
States of the Union. The honorable member 
tells us now that Virginia is out, and that each 
of the other named States are out, and have no 
existence. If she and the rest of them do not 
exist now they had no existence then ; and on 
the other hand, if they were within the Union 
then, they are for the same reason within the 
Union now. After the law passed it was found 
somewhat difficult to enforce the collection of 
that portion of the $20, 000, 000 allotted to States 
actually in rebellion, and Congress deemed it 
necessary to pass a supplementary act, to which 
I also invite the attention of the Senate. It is 
the act of June 7, 1862, entitled "An acl for 
the collection of direct taxes in insurrectionary 
districts within the United States, and for other 
purposes." The first section provides : 

" That when in any State or Territory, or in any 
portion of any State or Territory, by reason of insur- 
rection or rebellion, the civil authority of the Govern- 
ment of the United States is obstructed so that the 
provisions of the act entitled ' An act to provide in- 
creased revenue from imports, to pay interest on the 
public debt, and for other purposes,' approved Au- 
gust 5, 1861, for assessing, levying, and collecting the 
direct taxes therein mentioned, cannot be peaceably 
executed, the said direct taxes, by said act apportioned 
among the several States and Territories, respectively, 
shall be apportioned and charged in each State and 
Territory, or part thereof, wherein the civil author- 
ity is thus obstructed, upon all the lands and lots of 
ground situate therein, respectively." 

Tt then provides that each tract of land in 
those States — not Territories — shall be liable 



for its proportion of the tax. and commission- 
ers are to be appointed to colled the tax as fast 
as our armiesmake theirprogress. Just as the 
insurrection is quelled, whether it be in whole 
or in part, in any one State, the operation of 
the law commences through the civil means fur- 
nished bythe laws ; and in the interim, to guard 
againstthecontingencythattheremaylc salfe of 
the lands, which it may be necessary to the Gov- 
ment to disposeofinorderto realize the tax, the 
law providesthat the amount of the tax appor- 
tioned bythe act of 1861 shallbe consideredasa 
lien upon all the land in these very States, as 
States, which the honorable member from Wis- 
consin would have us believe, as no doubt he be- 
lieves, are now out of the Union, and not States 
at all. Didhenotvotefortheactofl8G2? Ihave 
no doubt he did. Was there any member of this 
body who called in question the right of Con- 
gress to pass that act ? And yet the act assumes 
— aud there is no power to pass it except on the 
correctness of that assumption — that they are 
still States bound to pay their proportion of the 
taxes for the support of the Government and 
to carry on the war, and will be States when 
the insurrection is suppressed. 

I refer to these two acts, and there are a great 
many others that I might cite with the same 
view, for the purpose of proving that, in the 
view of Congress, and in the view of the honor- 
able member from Wisconsin himself at the 
time he gave his assent to these two acts, the 
States were in and not out of the Union, were 
living and not dead States, or States that could 
die. But this fact is further established by the 
very first act that was passed for the purpose 
of carrying on the war, the act of July 13, 1861, 
entitled "An act further to provide for the col- 
lection of duties on imports, and for other pur- 
poses." It provides that where the President 
finds it impossible to collect the revenue from 
imports in the ports of any of the States in in- 
surrection, he may do it elsewhere — in some 
locality in the particular State where the insur- 
rection does not extend ; or, if the insurrection 
is commewsurate with the entire State, then he 
is to collect it on shipboard, or to close the 
ports of such State, and to subject any foreign 
vessel attempting to enter such a port, after 
notice of its having been closed by the Presi- 
dent under authority of the act, to condemna- 
tion as prize of war. These provisions are ab- 
solutely inconsistent with the idea of the hon- 
orable member from Wisconsin, as I think : but 
there is something else in that act that is even 
more inconsistent. What view did Congress 
take of the character of the insurrection at the 
time it passed the act of July 13, 1861? The 
language of the fifth section of that act is : 

" That whenever the President, in pursuance of the • 
provisions of the second section of the act entitled 
'An act to provide for calling forth the militia to 
execute the laws of the Union, suppress insurrections 
and repul invasions, and to repeal the act now in 



force for that purpose,' approved February 28, 1795, 
shall have called forth the militia to suppress com- 
binations against the laws of the United States, and 
to cause the laws to be duly executed, and the insur- 
gents shall have failed to disperse by the time direct- 
ed by the President, and when said insurgents claim 
to act under the authority of any State or States, and 
such claim is not disclaimed or repudiated by the per- 
sons exercising the functions of government in such 
State or States, or in the part or parts thereof in which 
said combination exists, nor such insurrection sup- 
pressed by said State or States, then and in such case"— 

That is, the case of an insurrection existing 
and not suppressed — 

" it may and shall be lawful for the President, by 
proclamation, to declare that the inhabitants of such 
State, or any section or part thereof, where such in- 
surrection exists, are in astate of insurrection against 
the United States; and thereupon all commercial in- 
tercourse by and between the same and the citizens 
thereof and the citizens of the rest of the United 
States shall cease and be unlawful." 

How long? Till Congress shall legislate? 
No, Mr. President; but "shall cease and be 
unlawful so long as such condition of hostility 
shall continue ;" in other words, as long as the 
insurrection continues. That ended, the use of 
the militia and the use of the Army of the Uni- 
ted States to bring about that end is to termi- 
nate. 

And what said the President of the United 
States ? I am not aware that any member of 
the Senate questioned the legality of any procla- 
mation issued by President Lincoln on this sub- 
ject, or questioned either whether he had not 
gone to the whole extent of the power devolved 
upon him by the section of the act of 18G1 
which I have just quoted. And what did he 
proclaim ? His proclamation of April 15, 18G1, 
began thus : 

" Whereas the laws of the United States have been 
for some time past and now are opposed and the ex- 
ecution thereof obstructed in the States of South Caro- 
lina, Georgia, Alabama, Florida, Mississippi, Louisi- 
ana, and Texas, by combinations too powerful to be 
suppressed by the ordinary course of judicial proceed- 
ings, or by the powers vested in the marshals by law." 

In his proclamation of April 19, 1861, he 
recites : 

"Whereas an insurrection against the Government 
of the United States has broken out in the States of 
South Carolina, Georgia, Alabama, Florida, Missis- 
sippi, Louisiana, and Texas, and the laws of the Uni- 
ted States for the collection of the revenue cannot be 
effectually executed therein conformable to that pro- 
vision of the Constitution which requires duties to be 
uniform throughout the United States; and whereas 
a combination of persons, engaged in such insurrec- 
tion, have threatened to grant pretended letters of 
marque to authorize the bearers thereof to commit 
assaults on the lives, vessels, and property of good 
citizens of the country lawfully engaged in commerce 



on the high seas, and in waters of the United States ; 
and whereas an executive proclamation has been 
already issued, requiring the persons engaged in these 
disorderly proceedings to desist therefrom, calling out 
a militia force for the purpose of repressing the same, 
and convening Congress in extraordinary session to 
deliberate and determine thereon: 

"Now, therefore, I, Abraham Lincoln, President of 
the United States, with a view to the same purposes 
before mentioned, and to the protection of the public 
peace, and the lives and property of quiet and orderly 
citizens pursuing their lawful occupations, until Con- 
gress shall have assembled and deliberated on the 
said unlawful proceedings, or until the same shall hav e 
ceased, have further deemed it advisable to set on 
foot a blockade of the ports within the States afore- 
said, in pursuance of the laws of the United States 
and of the law of nations in such case provided." 

In the proclamation of April 27, 1861, he 
announces that, by the previous proclamation 
of the 19th, a blockade of the ports of certain 
States was ordered to be established, and adds: 
"And whereas since that date public property of 
the United States has been seized, the collection of 
the revenue obstructed, and duly commissioned offi- 
cers of the United States while engaged in executing 
the orders of their superiors have been arrested and 
held in custody as prisoners, or have been impeded 
in the discharge of their official duties without due 
legal process by persons claiming to act under author- 
ities of the States of Virginia and North Carolina: 

"An efficient blockade of tho ports of those State* 
will also be established." 

In the proclamation of August 12, 1861, he 
states that a joint committee of both Houses of 
Congress had requested him to recommend a 
day of public humiliation, fasting, and prayer, 
and he proceeds to do so, and to state the ob- 
jects for which prayer should be offered, namely, 
"for the reestablishment of law, order, and 
peace throughout the whole extent of our coun- 
try." 

You authorize him to invoke, and he invokes 
the merciful interference of Heaven to make us 
again what we were before — States united under 
one form of Government, with the samepowers 
adequate to make us a nation prosperous and 
powerful. You tell him to go to Heaven" s 
throne and implore Heaven's interposition to 
restore us to the condition in which we were 
before the rebellion, to pray that "our arms 
may, be blessed and made effectual for the re- 
establishment of law, order, and peace through- 
out the wide extent of our country." No in- 
vocation to bless only a part of our land and 
leave the other out of His benediction. 

You tell him to issue a proclamation invok- 
ing the blessings of God upon the entire coun- 
try, not for the purpose merely of bringing about 
individual happiness, but for the purpose of 
bringing about what existed before under the 
Constitution of the United States — peace and 
order, a recognition of the authority of the Gov- 



9 



eminent and of the authority of the laws. Yet, 
according to the theory of the honorable mem- 
ber from Wisconsin, at that very time the work 
had been accomplished which the proclamation 
sought to prevent. The proclamation, pursuing 
your own authority, prays God to make our 
arms successful to the end of restoring peace 
and order everywhere in all the States. The 
honorable member's theory is that there was a 
large portion of the country, territorially in- 
cluding what were eleven States before, which 
cannot be restored by any blessings on the arms 
of the United States. Whether they were ever 
to have the benefit of the Constitution, or when 
they were to have it, orto what extent they were 
to have it, according to his theory, is to dejpend 
upon the discretion of Congress. 

Again, what has the Government done with 
your knowledge? Have they not, just as we 
have succeeded in getting the authority of the 
United States reinstated in the ports of the Uni- 
ted States, or territorially within the States, ex- 
tended the revenue laws? Do you not collect 
duties in New Orleans, in Charleston, in Sa- 
vannah, in Texas? How do you do this? Under 
what authority ? Under the authority of ante- 
cedent laws, which give it only in relation to the 
ports of States ; and yet, according to the hon- 
orable member's doctrine, all those ports were 
not ports of States of this Union at the time when 
the Executive, with the knowledge of Congress 
and his individual knowledge, undertook to col- 
lect duties and to enforce the execution of the 
impost acts and acts for the collection of in- 
ternal revenue. What was the subject of the 
debate this morning? The honorable member 
from Massachusetts, who, I believe, was the 
first to broach in the Senate the doctrine that 
the States were extinct — a doctrine not then re- 
ceived, as I remember, with unanimous appro- 
bation by this body as far as any opinion was 
expressed on the subject — that honorable gen- 
tleman himself, this morning, finding fault as 
he thought was his duty, with the manner in 
which the Secretary of the Treasury was dis- 
charging his duty of collecting the revenue in the 
States in which the insurrection did prevail, 
found no fault with his attempt to collect the 
revenue. It was only as to the manner of col- 
lecting ; it was his failure to administer the oath 
to the assessors whom he has appointed for that 
purpose. He recognizes, therefore, the duty of 
the Secretary to collect revenue in South Caro- 
lina and in Louisiana? Why? Under what laws? 
Laws passed by you extending the revenue sys- 
tem to the Territories of the United States, or 
laws having no force whatever in that particular, 
except upon the theory that the States, notwith- 
standing the insurrection, remained and were 
States of the Union? You are selling lands 
there now on that theory; I suppose I am 
guilty of no want of propriety in saying that 
that subject has been in part before the Com- 
mittee on the Judiciary. General Sherman, by 



an order passed after he reached Georgia and 
South Carolina, set apart a large portion of the 
territory of those two States for the freedmen. 
By the order, the most valuable portion of South 
Carolina was embraced — that portion in which 
the Sea Island cotton is made. There are no 
such lands there now to be acted on by that 
order. Why ? Because you have sold them to 
meet South Carolina's proportion of the direct 
tax; you have sold them to meet the propor- 
tion due by the individual citizens of that State 
to whom they belonged. Where did you get 
that authority ? Under the antecedent law ; and 
that law was passed on the theory that the States 
were still in and could not be got out ; and that 
law is now being executed upon the theory that 
they are in, that each State, as well as every 
individual member of each State, is just as re- 
sponsible to pay the tax which the Government 
may from time to time impose, as he or it was 
before the insurrection commenced. 

But that is not all. The Senate, and I sup- 
pose my friend from Wisconsin acted with the 
rest of the Senate in that respect, has confirmed 
nominations of judges and district attorneys 
and marshals for these very States. 

Mr. FESSEXDEN. For certain "districts." 
Mr. JOHNSON. Districts of the States. 
They are all out according to the theory. 

Mr. FESSENDEN. But the districts may 
exist. 

Mr. JOHNSON. I know ; but then I sup- 
pose if you appoint district judges in all the 
districts which may be within a State it is the 
same as appointing them for the State itself. 
Still, you extend the judiciary system of the 
United States to these States in part or in 
whole ; that my friend from Maine will of course 
admit. Under what authority? Under the 
authority of your antecedent legislation. The 
Constitution of the United States creates no 
courts, no marshals, no district attorneys : that 
is done by legislation ; and you legislated upon 
the subject of constituting courts and bringing 
into existence the particular officers and mak- 
ing it the duty of the Executive to appoint 
whenever a vacancy from any cause should 
exist. AVhat right has a district judge in South 
Carolina — I believe there is but one district 
in that State— to hold his office? What au- 
thority had you to confer it? If South Carolina 
was a Territory, then, as the Supreme Court 
have decided in the case of Canter m. The 
American Insurance Company, the judicial sys- 
tem of the United States did not extend to it. 
The territorial judges may be appointed for a 
time. The judicial tenure which the framers 
of the Constitution were so anxious to make 
permanent, so as to make the incumbents inde- 
pendent of legislative or executive control or 
influence, is not considered as applying to courts 
that may be created by Congress within the 
Territories, and the judges of those courts may 
therefore, it is said, be dismissed at any time. 



10 



Such has, in fact, been the practice of the Gov- 
ernment. They may be appointed for a term 
of years, and dismissed as any other civil officer 
of the Government by the Executive. Does 
my honorable friend from Wisconsin suppose 
that the judges in those insurrectionary States 
can be dismissed? Will he for a moment main- 
tain that their tenure is not an independent 
one, that they do not hold office during good 
behavior? I presume not; and if not, why not? 
Because they constitute a part of the judiciary 
of the United States as created by the Consti- 
tution, and are no such part of the judicial sys- 
tem of -the United States in those States except 
upon the theory that those States are now States 
of the Union. 

Further, you have done more than this. You 
passed an act some two or three years ago cre- 
ating an additional judicial circuit, making Or- 
egon and California the tenth circuit of the Uni- 
ted States. The act of 1802 (I have not time 
to turn to it) makes it the duty of the judfes 
of the Supreme Court whenever any chief jus- 
tice shall thereafter be appointed or any associ- 
ate justice, to make an allotment of circuits. 
What has been done (and you are presumed to 
have known what was done) by the members of 
the Supreme Court, and who, too, it may be 
supposed, have some reasonably correct view of 
the Constitution of the United States ? Here is 
an order passed by them at their session of De- 
cember term, 1862: 

"There having been"— 
says the order — I read from it — 
"two associate justices of this court appointed since 
its last session, it is 

" Ordered, That the following allotment be made of 
the Chief Justice and associate justices of said court 
among the circuits, agreeably to the act of Congress 
in such cases made and provided" — 

That is, the act of 1802— 
" and that such allotment be entered of record, to wit: 
for the first circuit. Nathan Clifford; for the sec- 
ond circuit, Samuel Nelson; for the third circuit, 
Robert C. Grier; for the fourth circuit, Roger B. Ta- 
ney; for the fifth circuit, James M. Wayne; for the 
sixth circuit, John Catron; for the seventh circuit, 
Noah H. Swayne; for the eighth circuit, David Da- 
vis; for the ninth circuit, Samuel F. Miller; fur the 
tenth circuit, Stephen J. Field." 

Do you know what States are in these sev- 
eral circuits? I suppose some of the Senators 
do not. Bear in mind the exact dimensions 
of these several circuits. The fourth circuit 
contains Delaware, Maryland, Virginia, North 
Carolina, and West Virginia. By that order 
the then Chief Justice was allotted to that cir- 
cuit. No two States were then more absolutely 
in rebellion than Virginia and North Carolina. 
The fifth circuit consists of South Carolina, 
Georgia, Alabama, Mississippi, and Florida, 
every one in a state of insurrection, and to that 



Mr. Justice Wayne was allotted. The sixth cir- 
cuit consists of Louisiana, Texas, Arkansas, 
Kentucky, and Tennessee ; all except Ken- 
tucky at that time in rebellion. To that the 
late Justice Catron was allotted. 

The late Chief Justice afterward died, and 
the present chief was appointed. The con- 
tingency again arose when it was necessary to 
make a new allotment, and that Chief Justice 
himself takes part in that allotment. Does he 
consider these States as at an end? An order 
passed by the court at the session of Decem- 
ber, 1865, by which the fourth circuit, consist- 
ing of Maryland, Virginia, North Carolina, and 
West Virginia, was allotted to Chief Justice 
Salmon P. Chase; the fifth circuit, consist- 
ing of South Carolina, Georgia, Alabama, Mis- 
sissippi, and Florida, alllatelyin insurrection, 
was allotted to Mr. Justice Wayne. The sixth 
circuit is now vacant, no successor having 
been appointed to Mr. Justice Catron. 

Thus the Senate see that the judges of the 
Supreme Court by a unanimous order passed 
in the execution of the statute of 1802, the con- 
tingency having occurred which rendered it 
necessary that they should discharge the duty 
imposed upon them, have thought themselves 
bound to consider all of these States as still 
States of the Union, and have, as among them- 
selves, divided out these States as composing 
the circuits to which the respective judges are 
to be allotted. 

Mr. President, it would be fatiguing the Sen- 
ate, however it may be desirable, perhaps, in 
order that the country may be informed, to refer 
to all the proceedings of the Legislature and 
the Executive and the Judiciary to show that 
in the opinion of each department these States 
are considered as existing States, and in the 
Union as such. All that I further propose to 
do on this occasion is to call the attention of 
the Senate to a passage or two in the opinion of 
the Supreme Court in the prize cases, and to 
some general remarks as to the authority of the 
United States to bring about the end which the 
honorable member supposes has been brought 
about by the hostilities or in consequence of 
the hostilities. 

A passage in the opinion of the court in those 
cases has been over and over again relied upon 
in this Chamber and elsewhere as maintaining 
the doctrine that whatever may be accomplished 
by war in the case of an international war, 
hasbeen accomplished by means of the hostili- 
ties which we have been carrying on in these 
States, and consequently that whatever rights 
are incident to a state of war, and may be 
acquired by either of the belligerents in an in- 
ternational war, are incident to and might be 
acquired by the United States in the hostilities 
which the United States has carried on ; and 
that as one of those rights is to obtain title by 
conquest that title may be obtained in our case 
bv the United States as well as if the war had 



11 



been an international one. Now, before I take 
up the case, permit me to change the order in 
which I pro'pose to consider it, and let me state 
the proposition so that I may very fairly try 
conclusions with my friend from Wisconsin. 

Supposing him to maintain the doctrine which 
[ am about to state, (he does it, as I think, 
ttee tesarily, as one of the results of his view, if 
he does not do it in terms.) we have obtained, 
says the honorable member, as one of the con- 
sequences of the war, some right that we had 
not before. What is that? A right to legislate 
for the people and for the territory within the 
States that have been in insurrection as people 
of Territories and as Territories. We have got 
that how? By the result of the war. What 
result of the war? Because of the victory 
which we have achieved over the rebellion. We 
have won it by force of arms ; we are the con- 
querors, they are the conquered. We, there- 
fore, by virtue of the conquest, have a right over 
the territory of these States which we did not 
before possess. We have an authority over the 
citizens of those States which we did not before 
possess. Conquered ! In the first place we are 
to consider what authority is there in the Con- 
stitution of the United States which gives to the 
General Government — if there shall be enough 
left of that Government to accomplish it — the 
right to conquer the States. I have, in a meas- 
sure anticipated the argument. The authority 
delegated is an authority not to conquer people 
or territory, but to conquer in the name of the 
Constitution and laws of the United States, and 
thereby, by force of such conquest, to be able 
to hold them up and declare to the insurgents, 
" This is your Constitution and your laws, and 
you are bound by them as you were before you 
attempted to resist their authority." 

Can anybody doubt that? We went into the 
conflict to maintain both the Constitution and the 
laws. What gave rise to the conflict? Whatwas 
the conflict? Are the States and the people of 
the States in or out of the Union ? We have tried 
that question by ordeal of battle. What has 
been the result ? Have the insurgents succeeded, 
or have we succeeded ? They wanted to get out 
of the Union ; we wanted to retain them in the 
Union. That was the issue between us. We 
said that, notwithstanding their acts of seces- 
sion and hostility, they were still States, and 
their citizens were bound to obey the Constitu- 
tion and laws of the United States. They said 
they were not States of the Union, and that 
their citizens were not bound by the Constitu- 
tion and laws of the Union. The struggle has 
been made, the issue has been tried, the verdict 
has been rendered, and it is in our favor. Suc- 
cess is ours. Well, success how? Succeeded 
to what extent? Succeeded in keeping in the 
Union men who were endeavoring by force of 
arms to escape from the Union. 

The proposition of the honorable member is 
that we have succeeded only in part; we have 



put down the insurrection, but we have lost the 
States to retain which was our.objoct in carry- 
ing on the conflict. If so, it can be hardly 
called a victory at all. Preservation was the pur- 
pose ; preservation was the duty ; the countless 
lives that have been lost, and the still more 
countless treasure that has been expended, 
have served, to be sure, the purpose of putting 
down forcible resistance to the execution of the 
Constitution and the laws, but leave the Union 
a Union only of some twenty-one States instead 
of thirty-three or thirty-four. The victory, ac- 
cording to that theory, is but half achieved; 
the object is but half accomplished. We wanted 
to bring them where they were when they 
started. They said they would not return to 
where they were when they started. We have 
put it out of their power to taka themselves out 
of the Union individually, but we have not 
been able to retain the States. They are hope- 
lessly, absolutely gone, according to the theory 
of the honorable member. Can that be so, 
Mr. President? Is it possible that it can be 
so? If it be, I am by no means prepared to 
say that the object accomplished compensates 
at all for the sacrifices which have been made 
to accomplish it — a dissevered Union, brought 
about, not by our consent ; we protested against 
it ; but if the honorable member is right in hia 
theory, brought about because we could not 
prevent it. Practically, he comes to the same 
conclusion that the former President of the 
United States came to, as announced in the 
message which he sent to Congress announcing 
the existence of the insurrection, that there 
was no right to secede, but that there was no 
authority in the Government to prevent it. It 
makes very little difference whether the want 
of authority is acknowledged as a want appar- 
ent in the Constitution, or whether it is main- 
tained as a fact which cannot be avoided if the 
insurgents think proper to carry on the war for 
any length of time — not to be avoided if they 
pursue a certain course of conduct. Now, Mr. 
President, what difference in principle does it 
make as far as concerns the question which I 
am now discussing, whether there are twenty- 
one States resolved upon standing by the Gov- 
ernment and eleven only in hostility against it, 
or whether there be eleven who stand by it 
and twenty-one against it, and the eleven suc- 
ceed? 

Massachusetts and Virginia, perhaps, at one 
period in the history of the Government, might 
by uniting their forces have escaped the obli- 
gations of the Union. The States upon whose 
shoulders rested for support the arms of Wash- 
ington, during the revolutionary struggle, were 
then all-powerful; and one of those States 
would have been perhaps the most powerful 
State now in the Union but for the existence of 
involuntary servitude. I mean Virginia. If the 
remaining States had thought proper to resist it, 
those two" States might by their physical power 



12 



and patriotism have put down the insurrection ; 
and,, according to the theory of the honorable 
member, then the Union, -which our fathers 
thought consisted of thirteen States, the States 
that had carried us successfully through the 
revolutionary struggle, would be reduced to two. 
What sort of a Congress would you have? Two 
Senators from Massachusetts and two Senators 
from Virginia, and a larger number in the other 
House. Do you think that would be a consti- 
tutional condition of things? 

Mr. HOWE. What is the clause of the Con- 
stitution which condemns it? 

Mr. JOHNSON. Condemns what? 

Mr. HOWE. Condemns that state of things 
in the case supposed. 

Mr. JOHNSON. There is no particular 
clause condemning it, because, I was about to 
say, no man in the Convention ever thought that 
such a proposition would be contended for. 

Mr. HOWE. I presume not. 

Mr. JOHNSON. It is not provided against 
in express terms, but it is provided against by 
the whole spirit of the Constitution. The Gov- 
ernment, formed by the Constitution cannot exist 
unless the States are represented. The theory 
of the honorable member would, in the case I 
have supposed, constitute Virginia and Massa- 
chusetts despots, armed with the power of doing 
whatever they might think prober toward the 
other States or the citizens within those States. 

But again the honorable member says thatcon- 
quest extinguishes these. States, or that what has 
been done extinguishes them. Does the hon- 
orable member recollect what the decision of 
the Supreme Court was in the case of the Uni- 
ted States vs. Rice, reported in 4 Wheaton? I 
have no doubt his memory can easily be re- 
freshed when I call his attention to the case. 
The honorable member told us 3 r esterday that 
he could not imagine a State suspended that 
could be revived without some congressional 
legislation. Suspension in such a case, accord- 
ing to him, is death. The case to which I al- 
lude presented this question: during the war 
of 1812, sometime in 1814, the British obtained 
the undisputed possession of Castine and of the 
territory of Maine lying on the other side, a 
territory, I believe, constituting about onethird 
of that State. From the time they got posses- 
sion up to the ratification of the treaty of peace 
of February, 1815, they had undisputed posses- 
sion; the authority of the United States was 
gone for a time; the authority of Maine was 

fone for a time. Is that part of the State of 
laine out of the Union now? I do not think 
my friend whom I see, one of the Senators from 
the State of Maine, would admit that. I rather 
presume that he thinks that Castine is a part of 
the State of Maine, and he thinks that all the 
rest of the territory of that State that came into 
the actual physical possession, by force of arms, 
of Great Britain in 1814, and remained there 
until the ratification of peace in 1815, still is a 



part of the State of Maine. But what was it 
in the interval? Dead, if my friend from Wis- 
consin is right now as to the effect of State sus- 
pension; dead, because the authority of the State 
and the authority of the United States during 
the whole of that period was suspended. This is 
not my own word ; it is the word of the Supreme 
Court itself. The decision arose out of this 
state of facts : while the port was in the exclu- 
sive military possession of England a cargo was 
imported, and England imposed, herself, upon 
the cargo whatever duties she thought proper 
to exact. The cargo was landed, the English 
duty paid. The authority of the United States 
afterward was reinstated. The collector of the 
United States insisted upon the importer pay- 
ing the duty which the cargo would have been 
liable to under the laws of the United States if 
Castine had been in the possession of the Uni- 
ted States at the time of the importation, and 
he made him give a bond for the payment of 
such duty. The case was tried, and the Supreme 
Court by a unanimous decision decided that the 
bond was void. Now, how came they to decide 
so? I will read a few sentences from the opin- 
ion of Mr. Justice Story, in 4 Wheaton, page 
253. He says: 

" The single question arising On the pleadings in ihis 
case is, whether goods imported into Castine during 
its occupation by the enemy are liable to the duties 
imposed by the revenue laws upon goods imported 
into the United States. It appears, by the pleadings, 
that on the 1st day of September, 1814, Castine was 
captured by the enemy, and remained in his exclu- 
sive possession, under the command and control of his 
military and naval forces, until after the ratification 
of the treaty of peace, in February, 1815. During this 
period the British Government exercised all civil and 
military authority over the place, and established a 
custom-house, and admitted goods to be imported, ac- 
cording toregulations prescribed by itself.and, among 
others, admitted the goods upon which duties are now 
demanded. These goods remained at Castine until 
after it was evacuated by the enemy ; and upon the 
reestablishment of the American Government the 
collector of the customs, claiming aright to American 
duties on the goods, took the bond in question from 
the defendant for the security of them. 

" Under these: circumstances, we are all of opinion 
that the claim for duties cannot be sustained. By the 
conquestand military 'occupation of Castine the enemy 
acquired that firm possession which enabled him to 
exercise the- fullest rights of sovereignty over that • 
place." 

That is, as long as it continued. Now he 
goes onto say how long it continued: 

"The sovereignty of the United States over the 
territory was of course suspended, and the laws of the 
United States could no longer be rightfully enforced 
there, or be obligatory upon the inhabitants who re- 
mained and submitted to the conquerors." 

"The subsequent evacuation by the enemy, and re- 



13 



sumption of authority by the United States, did not, 
and could not, change the character of the previous 
transaction." 

Did anybody suggest that before the authority 
of the United States, after the British evacuated 
Castine, could be reinstated it was necessary 
for Congress to legislate? Did anybody sug- 
gest that the suspension of the authority of the 
United States during the period of the posses- 
sion of Castine by the enemy operated to put 
an end to the authority of the United States, 
and so completely that it could not be reestab- 
lished except by subsequent legislation? Un- 
questionably not. The moment the place was 
abandoned the authority of the United States 
became reinstated proprio vigore. 

Now, to apply it to tire case under considera- 
tion, the effect of the occupation of Castine was, 
according to the language of the court, to suspend 
the Constitution and laws, and the authority of 
both, within the limits of that possession. The j 
possession terminates, and the court say that | 
upon the termination of that military exclusive 
possession the authority of the United States 
is revived at once without any legislation. It 
never occurred to the court or to anybody else, 
and my friend will look in vain at the statute- 
book for the purpose of showing that there was 
any legislation extending again the revenue 
laws of the United States to the port of Cas- 
tine. It revived just as animal life revives in 
certain cases after temporary suspension. 

Suspension, then, according to the doctrine of 
the Supreme Court, is not what the honorable 
member from Wisconsin supposes suspension 
to be ; it is not death : it is temporary paralysis 
of which the cure becomes absolute and effect- 
ual by removing the cause of that temporary 
paralysis, and that ended, the States stand as 
they stood before the disease assailed them : 
they stand perfect, with all the health of living 
and vital and powerful States, and entitled to 



the benefits of the Constitution and the laws, for 
the same reason that the people of Castine and 
that part of the territory of Maine which was 
held for a time by the armies of England be- 
came at once by the termination of that posses- 
sion reinstated in all the rights which belonged 
to Castine and that part of Maine before its 
possession by the enemy. 

We hear of the right'of conquest, What is 
to be conquered ? Only what you have a right 
to demand. And what have you in such a case 
as thisa right to demand?- Submission to the 
authority of the Government, and that you have 
got. To maintain that, under the authority to 
enforce by force of arms submission to the au- 
thority of the Government you can destroy the 
States, is to say that Government can accom- 
plish that by arms which it has no right to raise 
an arm to accomplish. 

There are many other observations, Mr. Pres- 
ident, with which I might trouble the Senate, 
and may perhaps do so at some future day and 
on some other question; but I have said as 
much and more than I intended when I rose. 
I conclude, therefore, with saying and with 
hoping, as I think every patriotic man in the 
country does hope, that our ancient harmony 
will be restored; that our ancient .Union of 
States, as they existed when the insurrection 
commenced, will be reinstated; that we shall 
forgive and try to forget the horrors through 
which we have passed during the last five years : 
that we shall come together as a band of 
brothers, and present to the nations of the world 
a Government in which there is an actual union 
of obligation and of hearts sufficient to protect 
us against foreign foes, powerful enough and 
willing and resolved to guard against all perils 
to its continuing existence arising from insur- 
rection at home, and capable of making us one 
of the freest and most prosperous and most 
renowned nations upon the face of the earth. 



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